Oral argument — United States Cold Storage v. Workers' Compensation Comm'n

311-868 United States Cold Storage v. Workers' Compensation Comm'n Good Morning and may it please the Court. My name is Mark Kreider. I represent the Appalachian United States Cold Storage. May it please the Court, the issue presented before you, unlike the other cases we heard this morning, is one, we claim, of a legal nature alone. That is, whether or not the Industrial Commission, strike that, the Workers' Compensation Commission, as an administrative agency, has the authority to act beyond its specific grant of authority in the legislative enactment. And the rulemaking ability of that body in interpretation of the Article 7020.90, the facts are, your Honors, that on February 16, 2007, the arbitrator ordered the parties in this consolidated case to submit a proposed findings within 30 days in accordance with 7020.90. On February 28th, I might add that that was before any decision was rendered. On February 28th, 2007, the case, the consolidated case had been pending for more than three years and it appeared on the monthly status call. Can I just, I hate to interrupt, but let me ask you a threshold question that's a little bit perplexing to me, aside from the procedural history. You have a situation here, it's a threshold jurisdictional question. The record shows that neither the initial bond document nor the untimely bond document that was filed on June 15, 2011, identified a surety for the bond. How does a clerk accept a surety where none was provided? I mean, isn't there a problem with the surety? And if that statutory prerequisite is not complied with, how do we even have jurisdiction here? Because, your Honor, it's our position that the Commission and the Circuit Court neither had subject matter jurisdiction to rule in this matter at all. And because this Court is permitted to rule sui sponte on the issue of subject matter jurisdiction, this matter would probably appear before you anyway. So you're asking that we dismiss it for lack of subject matter jurisdiction? No, I'm asking that the arbitrator's decision, the Commission decision, and the Circuit Court order be vacated for lack of subject matter jurisdiction. Okay. But that's your position? Yes. Okay. So May I continue? You may. Although, doesn't that sort of trump everything else? No. Either I misunderstood your question. You're saying that they never had subject matter jurisdiction, correct? I'm saying that the arbitrator did not have subject matter jurisdiction at the time he rendered his decision in this matter. You're saying it had nothing to do with the surety bond? Nothing whatsoever. Although, you sort of, we end up in sort of the same place, ultimately. But it's derivative to that. Okay. Or it's downstream. All right. I see the point. Okay. If I may. I'm all flustered now. We don't want to fluster you. Just take a moment. Get composed. Okay. Provided we return the cup to the council table so you can drink some water now. I'm fine. On February 16th, the arbitrator ordered the consolidated case to submit proposed findings within 30 days in accordance to Rule 70-2090. On the 28th of February, the case that appeared on the monthly status call had been pended for three years, and no one appeared at the court. Why would someone have to go to the monthly status call if the case had already been tried? Because the case, Your Honor, had still been pended. It had not been tried to completion, and no decision had been made. Well, we understand no decision had been made, but you already tried the case. I'm sorry? You already tried the case. Besides? No, Your Honor. What were you waiting for? What were you ordered to prepare? We were ordered to submit proposed findings of that. That's what I said. That's the only thing you were waiting for. Proofs closed? The proofs were closed. So the case had already been tried. Why would they go to the status call? Does that make sense to you? Well, what does the rule require? Hypothetically, if the decision had not been rendered yet, and during the time when the order was pending to submit those proposed findings, counsel would appear to advise the arbitrator that proposed findings had not yet been submitted, and if the decision had not been rendered, continue the case for 30 days for issuance of a decision. That's what could have been. But that's the rule. The rule says, and that's 70-20-60, says. Well, they don't interpret it that way. I'm sorry? They don't interpret it that way. They interpret it as saying that it was inadvertently DWP'd because it had already been tried. Right, so the orders are internally inconsistent. Inadvertent procedural dismissal took place in this instance. There was clearly an arbitration period that took place, as well as an arbitration decision issued. Order dismissing the claim for one of prosecution, but also indicating the case was tried, is internally inconsistent. I presume you're referring to the commission's order? Yeah. Okay. If I may also refer to that order as well. The commission says in the lines before it that clearly, and I'm quoting here, there was clearly an arbitration, strike that, in the lines subsequent to that. There was an order dismissing the claim for one of prosecution, and it also says, but indicating the case was tried is internally consistent. There's nothing of record that says on the order that this case was tried as a reason for not entering an order of dismissal. That is evidence de hur, I think they describe it as. De ors. De ors. De ors, the record. I looked at the thesaurus.com this morning. De ors. In the, in a motion to vacate, non-pro-tunk, that we brought before Commissioner Biscerco, there was material presented as an exhibit by Petitioner, indicating a series of e-mails that went back and forth between Arbitrator Hennessey and Petitioner's attorney. In that series of e-mails, if it were to be considered as part of this record, which we claim it is not, but if it were to be considered as part of this record, the arbitrator unilaterally says that he would reinstate in standard. Because he made a mistake. I mean, without pressing it, was this case tried or wasn't it tried? Are we going to dispute reality? Was it tried or not? If you mean by tried, were proofs closed? Yes, they were. All right. However, a decision wasn't rendered, and we were mandated to submit proposed findings. The case wasn't over. Counsel. Yes, ma'am. Do me a favor. Could you assume that we don't buy your argument on the fact that the arbitrator couldn't vacate it and get to the issue of whether the circuit court had jurisdiction? The circuit court didn't have jurisdiction. All right. Tell us why. The circuit court does not have jurisdiction, Your Honor, because the arbitrator and the commission acted without subject matter jurisdiction. The circuit court's jurisdiction is derivative of that. Anything that occurred subsequent to the order, which had not been, and still has not to this day been reinstated, is a void order. It's beyond the scope of specific authorities granted by the law. Well, let's assume that we would find that the circuit court, that the commission was correct in its decision. Did the circuit court have jurisdiction to enter its order? If the commission had subject matter jurisdiction? Yeah. Then an appeal or, I'm sorry, a review to the circuit court would lie? We understand it would lie, but should it have lied? Sure. Did you file your bond on time? Go back to the bond issue. Did you file your bond on time? Yeah. We filed our request for a bond. It was all accepted by the clerk of the circuit court. Except it had no surety. I'm sorry? There was no surety. Subsequent to that, Your Honor, if there was an irregularity in the bond, that was cured, we believe, by virtue of the fact that there was submitted a full insurance policy to this court indicating who was responsible for and if the person who signed for the bond, if you will, was a proper party to bind the company by virtue of that insurance policy. Bind the company to what? I'm sorry? Bind the company to what? You've got to have a surety, don't you? Doesn't the bond have to have a surety? Bonding has to have an surety. Who was your surety? I'm sorry? Who was your surety? I can't tell you that. Well, I can tell you. You had none. The bond was missing a surety. If, in fact, we're before this court on the issue of bond alone, I would say you're right. If we are here because the commission, I'm sorry, the arbitrator and the commission acted beyond the scope of their authority and, therefore, without subject matter jurisdiction. That's not what I asked you. That's not what I asked you. I understand that. What I asked you was, assuming that the commission had subject matter jurisdiction, did the circuit court have jurisdiction to hear your review? Well, the basis of our appeal is that the commission did not have subject matter jurisdiction. Therefore, we're not communicating. I'll withdraw the question. You concede. We're not communicating. I'll withdraw the question. No, no. I'll continue to answer it if I understand. You concede that if the commission did have jurisdiction and their decision we find was correct, you're out with the lack of a surety. If we're wrong below. Right. If we're wrong below. Then we have no jurisdiction, correct? That's correct. All right. But if we're right below, then you do have jurisdiction by virtue of the rule saying that you can consider subject matter jurisdiction to respond to. And that's in our brief. So you're all in on whether or not the commission had jurisdiction, so to speak. Okay. Fair enough. And I would say, just in support of that, our position on the commission not having jurisdiction, subject matter jurisdiction, you'll note from the order of dismissal itself, there's an interpretation of the rule that there's no need to go to anywhere else to interpret that rule because the notice itself and the order itself says that if a petition to restate is not filed within 60 days, the clause cannot be reopened. And the notice of the rule restates that as well and constitutes an interpretation of 70-20-60-CI and CII. And so if I haven't answered your question, I hope to have answered it, but we predicate our appeal on the lack of subject jurisdiction below. And I understand your argument as to why you didn't feel that the commission had jurisdiction in light of the arbitrator's action. So I think it's clear. And the last thing I would say, Your Honor, if I may, is that the time limits as prescribed by the statute and the rule are jurisdictional due to the fact that the remedies, if you will, under the Workers' Compensation Act were unknown to common law. And my brief sets forth the fact that they were jurisdictional, in fact. Thank you very much. Thank you, counsel. Counsel may respond. In the course of your discussion, tell us why the commission had jurisdiction. Well, Your Honor, hearing the discussion between yourselves and counsel, to me the threshold question really is the appeal bond. That's, I guess, what I would like to discuss with Your Honors. Because in a sense, I mean, the commission found that there was jurisdiction. They made that specific finding. So how, if the commission makes that finding, does that ever get in front of you to even decide whether they had jurisdiction unless a timely correct appeal is filed? Because if he had never appealed that commission decision, the final decision of the commission is that they had jurisdiction to hear, you know, they had jurisdiction to issue the decision they did in the underlying case. How did he even get to review it, you're saying? How does he? My point is, how does he get to review it? Unless he has a proper appeal bond, it's not as if the, you know, the commission's decision on the arbitrator's inadvertent dismissal just magically appears at the appellate court. It has to go through the process to get here. And the only reason that this, I noticed the appeal bond being an issue. I didn't look at it from the commission to the circuit court, so we argued the case on the substantive merits at the circuit court. Counsel filed some kind of motion about an appeal bond at the appellate court, which to me was irregular, and I didn't quite understand why it was being filed. So I thought, well, I'm going to go look at the circuit court record and see what happened with that original bond. And that's when I discovered that the original bond did not have a surety. The original bond didn't even, wasn't even executed by the person that said he had authority to do so until it was filed 50 days after the deadline, dated back to. It did not correct the deficiency either, did it? Right. It did not. It was, at that point, even once the gentleman that had authority to execute the bond had executed it, it was two days after the 20-day deadline, and still failed to have the surety. So I don't know why the circuit court went ahead and issued the summons. They did. I noticed that after the fact, once we got, you know, to this point. But I, respectfully, I think that's where this case does begin and end, because the commission's decision and everything else that happened on the lower level doesn't make any difference if this Court doesn't have the jurisdiction to begin with to hear his argument. And he's conceded that the surety was, the bond, the appeal bond was defective. So. Well, hold on a second. Let's not get confused about the jurisdiction of this Court to hear the case compared to the jurisdiction of the circuit court to hear the case. Because clearly the notice of appeal in this case was filed within time of the final order entered by the circuit court. The question was whether the circuit court had jurisdiction. And we always have jurisdiction to determine that. But let's back up one step. Let's assume that a proper bond was filed. We would still have jurisdiction to determine whether the commission had jurisdiction. We have the right to question the jurisdiction of every tribunal before us. And we, quite frankly, have an obligation to do so. And I don't mean, Your Honor, to suggest otherwise. And that's where I guess I'm getting confused on sort of the procedural aspect of this, because of course this Court has the right to figure jurisdiction at any point along the way. It's just you wouldn't even get that question before you today unless there was a proper appeal of the commission decision to begin with. So, of course, you have the jurisdiction to do all that. Just pointing out because there was the inappropriate appeal bond, it doesn't just, as I said, magically appear here. You have to get here through certain steps. But let's just assume it was an inappropriate appeal bond. Again, the one thing that was never mentioned in any of this, in the brief or in argument this morning, was the standard of review in this case that I pointed out. When the commission is interpreting its own rules, it's the court doesn't have to follow it, but the commission is given deference. And unless it's clearly erroneous or ---- Scalia, you know how that rule works. If we want to affirm them, we give them deference. If we want to reverse them, we rely on the cases that say they're not entitled to any deference on the interpretation of a rule. So, you know, we pick and choose on that one. It's outcome determinative, you know. However we want to go is the way we go. But, all right, now the question becomes here now. If a circuit court were to inadvertently DWP a case, are we suggesting that past 30 days the circuit court doesn't have the jurisdiction to correct its own error? I mean, you're certainly not suggesting that. I am not. I wouldn't. And so why wouldn't the commission have the same right to correct its own error? Well, and as an additional argument that was not even in the brief, it's interesting, the circuit court judge asked, you know, in civil court, if I do something like that and I dismiss a case, if I go ahead and enter an order, which in this case would be the arbitrator's order, that in effect acts as the reinstatement in and of itself. To clear up just a point of fact, the call in Joliet was actually the 14th. So the case had been tried two days in the prior year, in 2006. The call was February 14th. And I allege in the record that I was there, but that it's really no great import. The case was finished at trial on the 16th. I mean, well before the dismissal ever went out. So the case was tried, finished on the 16th. Proofs were closed. And then later that month, the arbitrator sends this document out, which, as you point out, was internally inconsistent, scratches out, says case tried, get the DWP, and that's how we end up at this point. The arbitrator issues a decision. I appreciate your point on the standard of review. I guess I just would use that standard of review, though, in the sense to look at the question, is it clearly erroneous, arbitrary and unreasonable for the commission to say that a prosecuted case, to the full extent under the Work Comp Act, should be dismissed for a warrant of prosecution? I think that offends the logic of just about anybody. And I think the commission was reasonable in the way it approached this case. And this issue has been going on for a long time. Petitioner tried the case and won the original permanent disability almost six years ago now. And after a couple up and downs from the commission back to the arbitrator and up to your honors today, here we are finally on this procedural issue. Can you help me on what normally goes on at the commission? If you try a case and the only thing you're doing is waiting for the decision, do you still have to attend the status clause? You know, the case usually, until the decision is issued, the case traditionally still shows up on the arbitrator's status call. And the arbitrators get pressure to, you know, to know what's going on with their above-the-line cases that are over three years old. So we usually go and report on what's happening. The arbitrator usually, because they're not trying a million cases, has enough knowledge to say, oh, when I'm going through my list, I know that I've already tried this case. Doesn't something show up on their printout that they've tried the case? Not necessarily. Not until the decision is issued. Because this case was tried over a three-day span, over multiple months. I mean, so the trial had started, counsel participated in the whole process, got to the end, closed proofs, and then this inadvertent decision. Well, they're not going to take it off and lose track of the case just because there's been a proof trial but no judgment. Correct. Until the arbitrator issues the decision, it's still going to appear on the status call. The procedure just is to say, remind the arbitrator as such, you know, you already tried this case. And, you know, my representation when we were arguing this in front of the commission, you know, my statement to the commission was, well, I was there. And in the e-mail, which we argued about whether it was, you know, whether he had proper notice of that or whatever, I noted to the arbitrator that I was present on February 14th, reported the case as tried. There was no issues. The case finished on the 16th. Arbitrator asked for proposed decisions. Get the errant dismissal order. Arbitrator basically says, I'll take care of it. I have a question about that just generally. Is it proper to have conversations with an arbitrator one side without the other side being present or noticing? No, it's not. And I'm not claiming that it is. And I know there's been some issues post this case about ex parte communications. What was stated in the record and is argued in the briefs is what I represented is at the time I called counsel's office and asked for the e-mail address. We did not get a returned thing that says it was undeliverable. Counsel has since said that, no, that really wasn't my e-mail address. So it's not exactly we made the attempt. And if you look at the e-mail, at the bottom it says C.C. Attorney Mark Freider. There was no attempt at ex parte communications. And even if you, all that being considered, if we're looking at the specific issue before you today on the ex parte, that's not what sways this case either way. It's on, you know, whether anybody had jurisdiction to hear this case. And I think my jurisdiction argument on the appeal bond does, you know, come first in a sense. But then after that, the commission's decision was reasonable. So on that basis, we do think the commission should be upheld. It found jurisdiction in this case on that issue if you were to side against an appeal bond. But as we said, apparently we were all in agreement that there was no appropriate appeal bond filed. So in a sense, maybe that's where this case gets decided. All right. Thank you. Thank you, counsel. Counsel, you may reply. In reference to the issue about appearing at the call, the status call, I cited 70-20-60-CI. And briefly it says, in all cases which have been on the file at the Industrial Commission for three years or more, the parties or their attorneys must be present at each status call in which this case appears. And the parties must appear at the status call even if there's no objection to a continuance. And the failure of a petitioner's attorney to request or answer a request for continuance or failure to appear at the monthly status call in which the case appears shall result in the case being dismissed for warrant of prosecution except upon showing of good cause. Well, the reason for that is you've got to be ready for trial if you're about the red line. The case is presumed that it's going to go to trial unless you file a motion for I agree. But you're already in trial. I mean, if the trial's already started. If the trial's already started, as counsel has suggested, it's traditionally been our, I won't say obligation, but our function to advise the arbitrator of what the status of the case is. That it's in trial. The proper thing to advise the arbitrator at that time to avoid an order of dismissal would have been that the case is pending for proposed findings that a decision has not been issued as of yet. So I would suggest whether or not the order of dismissal was a valid order at that time, I suggest it was. And it's strictly in compliance with the rule, rather. Number two, with respect to these e-mail communications. You think it's proper to dismiss a case for warrant of prosecution that's already been tried? How can it be warrant of prosecution? Is it proper? It may not be proper. But that's not, that's not for me to decide. And there are remedies within the act itself in the event of an improper order. And that would be through section 19-F to recall, motion to reconsider, any number of things. And in fact, in the e-mails, which for purposes of this response only, to reconsider, counsel himself says he will file a motion, a petition to reinstate. And it never was. So he recognizes the fact that there needs to be a reinstatement before the matter can be issued. And it's all that. Those are the only comments I have to make. Thank you very much for your time. Thank you, counsel, for your arguments. This matter will be taken under advisement and this position shall issue.